Breyer Sees Value in U.S. Supreme Court’s Looking to Foreign Law

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Justice Stephen G. Breyer, at his home in Cambridge, Mass., says that in an interdependent world, the court “must increasingly consider foreign and domestic law together."CreditDamon Winter/The New York Times

By Albert R. Hunt | Bloomberg View

Nov. 29, 2015

WASHINGTON — Justice Stephen G. Breyer, a progressive force on the United States Supreme Court for more than two decades, advocates the courts taking into account foreign law. That’s the stuff of a good debate, befitting a justice who got to the bench courtesy of former President Ronald Reagan and the archconservative Senator Strom Thurmond.

His ascent was mostly thanks to the exceptional political skill and standing of a mentor, Senator Edward M. Kennedy of Massachusetts, who got resurgent Republicans to approve the liberal judge when they could have instead tapped one of their own for the seat.

We will revisit that story, which illustrates the way Washington used to work.

In Justice Breyer’s recently published “The Court and the World,” his third book since becoming a justice, he suggests the court should look abroad for guidance on some decisions because about 20 percent of cases have something to do with what happens outside the United States. This notion is anathema to conservative members of the court, including Chief Justice John G. Roberts Jr. and the most forceful advocate of the right, Justice Antonin Scalia.

Justice Breyer says that in an interdependent world, the court “must increasingly consider foreign and domestic law together,” noting that “more harmonizing, understanding and application of American law to foreign activities is not the same as American courts deciding cases on the basis of foreign law.” This applies particularly to national security cases in the era of terrorism. From the Civil War through the internment of Japanese-Americans in World War II, the courts have largely given the president a blank check in times of war. That has changed with issues such as the detention center at Guantánamo Bay, Cuba. Justice Breyer goes through the competing claims of security, civil liberties and foreign laws.

These complications are present in a range of other issues: securities laws, copyright questions and human rights.

And the United States is a party to many treaties, starting with the World Trade Organization. One of the controversies involving the pending Trans-Pacific Partnership centers on resolving overlapping laws and conflicts with various parties.

This expansive perspective on the court’s responsibilities is in line with his general approach as he enters a 22nd year as a justice: that the law must evolve to deal with new realities that could not have been foreseen by the framers of the United States Constitution.

One of the current court’s shortcomings is the lack of a political practitioner. The nine who serve are sharp legal minds, but since Sandra Day O’Connor, a former majority leader of the Arizona State Senate who left the Supreme Court in 2006, there is no one who has faced a voter and has an appreciation of real politics. This is manifest in some of the court’s campaign-finance decisions, which critics say bear little resemblance to the way the system actually works.

Justice Breyer may come closest. He was chief counsel to the Senate Judiciary Committee and served under Mr. Kennedy, one of the great instinctive politicians of any age.

This was on display in the push to get Mr. Breyer on the bench. In 1980, Mr. Kennedy persuaded President Jimmy Carter to nominate Mr. Breyer to a seat on a Court of Appeals.

Nominations were delayed during the fall election season; then Mr. Reagan won the presidency and, in a shocker, the Republicans took control of the Senate for the first time in more than a quarter century.

Mr. Breyer recognized his nomination was dead and thanked his boss for his support. Not so fast, Mr. Kennedy replied. He went to Mr. Thurmond, of South Carolina, who was about to take over as chairman of the Judiciary Committee, and said that the Breyer nomination really mattered to him. Mr. Thurmond said he would go along with the nomination only if the president-elect approved. Mr. Reagan did, and Mr. Breyer passed in a lame-duck session, paving the way for his nomination to the Supreme Court 14 years later.

This reflected Mr. Kennedy’s remarkable ability. But it also helped that Mr. Breyer’s and Mr. Thurmond’s daughters were best friends and ice-skated together.